mother and children

ISSUE: A Mother Has Two Children With Dad (The Parties Are Not Married), Who Also Lives in the Same County, but Mom Wants to Move Away – Is This Even Legal?

Do I Have to Seek Court Permission if There Is No Open Case? Is the Court Going to Penalize Me for Moving When Dad Files a Petition?

The First DCA answered these questions, and I believe their reasoning and analysis cannot be questioned by other courts. It IS legal; you do NOT have to seek court permission if there is not an open case; and the Court should NOT penalize you for moving.

In Lojares v. Silva, 353 So.3d 699, 700 (Fla. 1st DCA 2023), the mother and father were living together in Alachua County, and they had two minor children. The parties ended their relationship, and mother moved to St. Johns County. The father filed a paternity petition “[s]oon after the move.” Id.
At trial, father argued that the mother moved without telling him “until the last minute.” Id.

In Lojares, the judge ordered that the children be returned to Alachua County and designated the father as the primary custodial parent (giving the mother every other weekend with the children). The court reasoned that the mother did not facilitate a close relationship with the father “as she ‘is the parent who abruptly removed the kids from Alachua County and then secreted them in St. Johns County.’” The court stated that the mother’s move was “wrong” as she did not consult with him or let him know that she was moving. The court reiterated that it was “wrong to unilaterally pull up stakes and move with those children without seeking a court order first or at least without consulting with the other parent.” Id.

The First DCA held “[t]his was clear legal error.” Id.

“[T]he mother did nothing wrong under Florida law and she did not violate any legal obligation to the unmarried Father.” Id.

The 1st DCA grounded their decision on two major points.

First, the appellate court stated that Florida’s relocation statute does not apply “to a change of a parent’s principal place of residence before any paternity order has been issued,” citing Rolison v. Rolison, 144 So.3d 610, 612 (Fla. 1st DCA 2014). “A parent may move with the children without seeking permission from the court or other parent.” Id. at 700.

Second, the appellate court cited Florida Statute 742.031(2), stating “the mother shall be presumed to have all of the time-sharing and sole parental responsibility” before there is a determination as to paternity and timesharing. Id.

Notably, the appellate court stated that the trial court acknowledged the relocation statute did not apply in this case, but the 1st DCA had a major issue with the trial court “continu[ing] to impose the statutory requirement to seek leave of the court or to consult the Father” when evaluating the parenting (best interest) factors in Florida Statute 61.13(3). Id.

Dads, there are things you can do to try to avoid this happening to your children.

We suggest seeking advice from a family law attorney if you are dealing with issues related to those raised in this article.

I would note the following: Judges do not like it when one parent tries to “pull one over” on another parent in family law cases. If the move is for the sole purpose of defeating Dad’s visitation rights or possibilities, I think the Court may come out a different way.